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Is Surrogacy Legal in Florida?


If you’re contemplating assistance with starting a family after unsuccessfully trying to get pregnant on your own, it’s important to research what options are available for prospective parents in Florida. Individuals who aren’t ready to go the route of adoption just yet may be considering surrogacy, which is where an individual carries the child for the intended parents.

Florida is a surrogate-friendly state, with laws on the books that dictate the legal requirements for surrogacy contracts in the state. There are two types of surrogacy, traditional and gestational, both of which can be rather complex. If you’re considering using a surrogate, it’s important to understand the legal requirements, how the types of surrogacy differ, and why you need to meet with a Florida family law attorney who is skilled at handling surrogacy agreements.

Gestational Surrogacy versus Traditional Surrogacy

Florida allows for both gestational and traditional surrogacy, but they are quite different.  With a traditional surrogacy agreement, a surrogate may use their own egg, which means they are the biological parent of the child. With gestational surrogacy, the surrogate has no biological connection to the child, they are only the carrier. The egg may be the mother’s (or from a donor) and the sperm may be the father’s (or from a donor).

Under Florida Law, one member of the commissioning couple must contribute the egg or sperm for gestational surrogacy. Also, the surrogate cannot contribute her own egg – this means options include father’s sperm and donor egg, mother’s egg with donor sperm, or intended mother’s and father’s egg and sperm. Because there is no biological connection with the surrogate, the intended parents assume immediate custody and responsibility. In the case of traditional surrogacy, the surrogate has to surrender her parental rights, and there needs to be a pre-planned adoption arrangement. If the surrogate decides to rescind the agreement (there is a short window where they can legally do so) then the case must proceed to court to determine custody and related issues.

Legal Requirements for Gestational Surrogacy

With traditional surrogacy no longer being as favorable as it once was, gestational surrogacy is the most commonly considered procedure. Florida Statute §742.15 covers the gestational surrogacy contract. The agreement will not be binding unless the surrogate is 18 or older and the prospective parents are legally married and both over the age of 18. There are additional medical requirements which must be confirmed by a licensed physician. Surrogacy can only be an option if the intended mother is not physically able to carry a pregnancy to term, or the pregnancy would cause physical risk to the mother or the fetus.

The gestational contract must have specifics set forth as well. Items like confirming the surrogate is the only person who can consent to treatment and management of the pregnancy, specifying that she will have to undergo various medical treatments and listen to recommended medical advice, and requiring that the surrogate has to relinquish all parental rights upon the birth.

In Florida, couples cannot pay an unreasonable fee to the prospective surrogate either. You are only allowed to compensate for justified living expenses, legal fees, and medical costs that are directly related to all aspects of the process (prenatal, labor, and postpartum periods).

If you’re considering surrogacy, contact the Law Offices of Schwartz | White at 561-391-9943 to schedule a consultation. Let our skilled Boca Raton family law attorneys help you with your surrogacy needs.



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